The Onderzoeksrechter in de Rechtbank van eerste aanleg te Turnhout (Belgium) asked the Court of Justice of the European Communities for a preliminary ruling on the compatibility of the Belgian law on giving evidence in legal proceedings and the Luxembourg law on banking secrecy with the principle of free movement of services.

The reference is connected to a criminal investigation in Belgium concerning financial and tax offences, in the course of which a suspect and a witness, both of whom are bank employees in Luxembourg, refused to answer questions put to them, invoking the obligation of professional secrecy which Luxembourg law imposes on professionals in the banking sector.

Unlike Belgian law, Luxembourg law makes the breach of banking secrecy a criminal offence. It provides, however, for exemption from criminal liability in cases where the information covered by banking secrecy is disclosed in the course of judicial proceedings.

On the basis of its interpretation of the territorial scope of the Luxembourg law, the national court implicitly considers that that law prohibits the disclosure of information covered by banking secrecy to the Belgian judicial authorities. Applying that premiss, the national court considers that the conflict between the Belgian law on giving evidence in legal proceedings and the Luxembourg law on banking secrecy, as interpreted by it, could present an impediment to the collection of evidence and a barrier to the free movement of services.

The national court's interpretation of Luxembourg law, on which the four questions submitted to the Court are based, is disputed by the Belgian Government and the Luxembourg Government.

The Court points out that in preliminary ruling proceedings it is not competent to give opinions on hypothetical questions. It then observes that, in that context, it can decline to answer questions submitted by a national court where it does not have the factual or legal material necessary to give a useful answer to those questions.

Against that background, the Court considers that the interpretation of the Luxembourg provisions on banking secrecy applied by the national court is hypothetical, since theLuxembourg courts have not yet ruled on the issue. It is not the only possible interpretation of those provisions.

The national court does not in any way explain why it considers the interpretation on which it relies to be the only one capable of acceptance. The fact that the relevance of the questions raised by the Belgian court rests on a particular interpretation of a national law of another Member State made it particularly necessary to state the grounds for the order for reference on that point.

In those circumstances, since the national court has not provided the Court with all the necessary information to determine whether the requested interpretation would serve a useful purpose in the main proceedings, the Court finds that the questions submitted to it are inadmissible.

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